Delhi High Court
Oriental Insurance Company vs Nirja Bhatt & Others on 22 September, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 22.09.2011
+ MAC Appeal No 65/2010
ORIENTAL INSURANCE COMPANY ...........Appellant
Through: Mr. L.K. Tyagi, Advocate.
Versus
NIRJA BHATT & OTHERS ..........Respondents
Through: Mr. Sandeep Kapoor,
Advocate.
AND
MAC Appeal No 429/2010
NIRJA BHATT & OTHERS ...........Appellants
Through: Mr. Sandeep Kapoor,
Advocate.
Versus
ORIENTAL INSURANCE COMPANY ..........Respondent
Through: Mr. L.K. Tyagi, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 These are two appeals which have been preferred by the
Insurance Company as also by the claimants; the Insurance
Company has sought a reduction in the awarded amount whereas
the claimants have sought an enhancement. The impugned Award
has awarded a sum of Rs.15,59,500 in favour of the claimants.
2 Record shows that the deceased was a Doctor by profession;
he was retired Brigadier Prasant Narain Bhatt; on 26.06.1999
while returning from Vimhans Hospital and going towards
Gurgaon, he had suffered an accident with the offending tanker as
a result of which he succumbed to his injuries. Claim petition had
been filed by his widow and two minor children.
3 The owner and driver had failed to contest the proceedings.
The Insurance Company had contested them. The Court while
disposing of issue No. 1 had taken site plan into consideration
which was admittedly not filed in the course of the trial but had
been filed by the Insurance Company along with its written
submissions. Written submissions filed by the Insurance Company
had appended a copy of a site plan which was the basis of the
compensation given by the MACT on issue No. 1. This was a
wrong approach; without getting the site proved, there was no
chance given to the claimants to dispute its veracity; it was also
not a certified copy of the document; its authenticity was not
known to any person and definitely not to the claimants at the
time when the judgment was passed; as noted supra, this site plan
has surfaced only at the time when the written submissions were
filed by the Insurance Company. The Tribunal had initially after
considering the evidence calculated a liability of Rs.31,19,000/-
qua the respondents; this was the amount to be awarded in favour
of the claimants but having taking note of the site plan, the Court
had recorded that the site plan had evidenced that Maruti vehicle
being driven by the deceased was coming from the wrong side and
since he had contributed to the negligence in the accident, 50% of
the awarded amount had been deducted which had been reduced
to Rs.15,09,500/- which was the awarded amount of compensation
under the head of 'loss of dependency'. For the reasons as
aforenoted, this was an incorrect and illegal approach; the site
plan could not have been read in evidence. A valuable right of the
claimants had been lost to dispute its authenticity and veracity. All
along, the case of the claimants was that the deceased was not
negligent and the accident had occurred because of the
negligence of the offending tanker. Finding on issue No. 1 is thus
set aside.
The Counsel for the Insurance Company has drawn attention
of this Court to the testimony of PW-2 as also the income tax
returns which had been filed and placed on record (Ex. CW-1/1)
by the widow of the deceased which document had evidenced the
income of the deceased as Rs.2,05,095/-. This is amply borne out
from Ex. CW-1/1. In this scenario, the Tribunal having relied upon
the testimony PW-2 to take into account the consultancy charges
between the period from November 1998 to March, 1999 and then
computing the income of the victim at Rs.40,000/- per month was
a wrong approach; documentary evidence i.e. Ex.CW-1/1 was for
the assessment year from 01.04.1998 to 31.03.1999; these
payments as sought to be adduced in the testimony of PW-2 were
admittedly not reflected in Ex. CW-1/1. As noted supra,
Ex.CW-1/1, income of the deceased had evidence at Rs.2,05,095/-.
This was thus correct income of the deceased. Deducting 10%
amount from the aforenoted sum as compulsory deduction of tax,
the rounded figure would be Rs.1,86,000/-; 1/3rd was deducted as
expenses which was approximately Rs.62,000/- equaling a sum of
Rs.1,24,667/- which is rounded of at Rs.1,25,000/-. The correct
multiplier to be adopted was 9 and applying this multiplier of 9 to
Rs.1,25,000/-, the figure thus under the 'loss of dependency' is
calculated as Rs.11,25,000/-. The amount of Rs.30,13,416/- is
accordingly substituted with the figure of Rs.11,25,000/-. A sum of
Rs.75,000/- awarded under the head of 'love and affection' for the
three dependents; Rs.10,000/- as 'lost of consortium' and
Rs.10,000/- as 'funeral expenses'; another sum of Rs.10,000/- for
'loss of estate' had been awarded in favour of the claimants. These
amounts call for no interference. The total amount would thus
reads as Rs.12,30,000/-. This amount shall carry interest @ 7.5%
per annum which would be from the date of filing of the petition
till realization.
4 Both the appeals are disposed of in the above terms.
INDERMEET KAUR, J.
SEPTEMBER 22, 2011
a
